State of New York
Department of State
Committee on Open Government

The staff of the Committee on Open Government is authorized to issue advisory opinions. The
ensuing staff advisory opinion is based solely upon the information presented in your
correspondence.

Dear

I have received your letter of October 15, which reached this office on October 22. You
wrote that you "have experienced a brazen disregard" for the Freedom of Information Law in your
efforts to obtain records from the Town of Southampton. Based on a review of the materials
attached to your letter, it appears that requests directed to various Town officials were not answered,
and that disclosure of numerous records has been delayed because the records were sent to the
Town's consultant.

In this regard, first, since requests were made to several Town officials, I note that the
regulations promulgated by the Committee on Open Government (21 NYCRR Part 1401) require
that each agency designate one or more persons as "records access officer." The records access
officer has the duty to coordinate an agency's response to requests for records, and requests should
ordinarily be made to that person. If a request is made to a Town officer or employee other than the
records access officer, I believe that the recipient of the request must either respond directly in a
manner consistent with law or forward the request to the records access officer.

Second, in a related vein, the Freedom of Information Law provides direction concerning
the time and manner in which agencies must respond to requests. Specifically, §89(3) of the
Freedom of Information Law states in part that:

"Each entity subject to the provisions of this article, within five
business days of the receipt of a written request for a record
reasonably described, shall make such record available to the person
requesting it, deny such request in writing or furnish a written
acknowledgement of the receipt of such request and a statement of
the approximate date when such request will be granted or denied..."

If neither a response to a request nor an acknowledgement of the receipt of a request is given within
five business days, or if an agency delays responding for an unreasonable time after it acknowledges
that a request has been received, a request may, in my opinion, be considered to have been
constructively denied [see DeCorse v. City of Buffalo, 239 AD2d 949, 950 (1997)]. In such a
circumstance, I believe that the denial may be appealed in accordance with §89(4)(a) of the Freedom
of Information Law. That provision states in relevant part that:

"...any person denied access to a record may within thirty days appeal
in writing such denial to the head, chief executive, or governing
body, who shall within ten business days of the receipt of such
appeal fully explain in writing to the person requesting the record the
reasons for further denial, or provide access to the record sought."

In addition, it has been held that when an appeal is made but a determination is not rendered
within ten business days of the receipt of the appeal as required under §89(4)(a) of the Freedom of
Information Law, the appellant has exhausted his or her administrative remedies and may initiate
a challenge to a constructive denial of access under Article 78 of the Civil Practice Rules [Floyd v.
McGuire, 87 AD 2d 388, appeal dismissed 57 NY 2d 774 (1982)].

Third, the Freedom of Information Law is applicable to all agency records, and §86(4)
defines the term "record" expansively to include:

The Court of Appeals, the state's highest court, has construed the definition as broadly as
its specific language suggests. The first such decision that dealt squarely with the scope of the term
"record" involved documents pertaining to a lottery sponsored by a fire department. Although the
agency contended that the documents did not pertain to the performance of its official duties, i.e.,
fighting fires, but rather to a "nongovernmental" activity, the Court rejected the claim of a
"governmental versus nongovernmental dichotomy" [see Westchester Rockland Newspapers v.
Kimball, 50 NY2d 575, 581 (1980)] and found that the documents constituted "records" subject
to rights of access granted by the Law. Moreover, the Court determined that:

"The statutory definition of 'record' makes nothing turn on the
purpose for which it relates. This conclusion accords with the spirit
as well as the letter of the statute. For not only are the expanding
boundaries of governmental activity increasingly difficult to draw,
but in perception, if not in actuality, there is bound to be
considerable crossover between governmental and nongovernmental
activities, especially where both are carried on by the same person or
persons" (id.).

In a decision involving records prepared by corporate boards furnished voluntarily to a state
agency, the Court of Appeals reversed a finding that the documents were not "records," thereby
rejecting a claim that the documents "were the private property of the intervenors, voluntarily put
in the respondents' 'custody' for convenience under a promise of confidentiality" [Washington Post
v. Insurance Department, 61 NY 2d 557, 564 (1984)]. Once again, the Court relied upon the
definition of "record" and reiterated that the purpose for which a document was prepared or the
function to which it relates are irrelevant. Moreover, the decision indicated that "When the plain
language of the statute is precise and unambiguous, it is determinative" (id. at 565).

More recently, the Court of Appeals found that materials received by a corporation providing
services for a branch of the State University that were kept on behalf of the University constituted
"records" falling with the coverage of the Freedom of Information Law. I point out that the Court
rejected "SUNY's contention that disclosure turns on whether the requested information is in the
physical possession of the agency", for such a view "ignores the plain language of the FOIL
definition of 'records' as information kept or held 'by, with or for an agency'" [see Encore College
Bookstores, Inc. v. Auxiliary Services Corporation of the State University of New York at
Farmingdale, 87 NY2d 410, 417 (1995)]. Therefore, if documents are kept or produced for an
agency, as in the case of the records ordinarily maintained at town offices that have been sent to a
consultant, or records that are typically filed with an agency are sent directly to the agency's
consultant, they constitute agency records, even if they are not in the physical possession of the
agency.

From my perspective, insofar as Town records are in the physical possession of the Town's
consultant, in response to a request for any such records, I believe that the records access officer,
in carrying out his or her duty to "coordinate" the Town's response to requests, must either direct
the consultant to make the records available in a manner consistent with law, or acquire the records
in order that they may be disclosed in accordance with law.

Next, as a general matter, the Freedom of Information Law is based upon a presumption of
access. Stated differently, all records of an agency are available, except to the extent that records
or portions thereof fall within one or more grounds for denial appearing in §87(2)(a) through (i) of
the Law.

In my view, records submitted by an applicant, either to the Town or its agent, would, in the
context of the information that you provided, ordinarily be available under the law, for none of the
grounds for denial would appear to be pertinent or applicable.

I note that Xerox Corporation v. Town of Webster [65 NY2d 131 (1985)] dealt with reports
prepared by "outside consultants retained by agencies" (id. 133). In such cases, it was found by the
Court of Appeals that the records prepared by consultants should be treated as if they were prepared
by agency staff and should, therefore, be considered intra-agency materials that fall within the scope
of §87(2)(g).

Although that provision potentially serves as a basis for a denial of access, due to its
structure it often requires disclosure. Section 87(2)(g) permits an agency to withhold records that:

"are inter-agency or intra-agency materials which are not:

i. statistical or factual tabulations or data;

ii. instructions to staff that affect the public;

iii. final agency policy or determinations; or

iv. external audits, including but not limited to audits performed by
the comptroller and the federal government..."

It is noted that the language quoted above contains what in effect is a double negative. While inter-
agency or intra-agency materials may be withheld, portions of such materials consisting of statistical
or factual information, instructions to staff that affect the public, final agency policy or
determinations or external audits must be made available, unless a different ground for denial could
appropriately be asserted. Concurrently, those portions of inter-agency or intra-agency materials
that are reflective of opinion, advice, recommendation and the like could in my view be withheld.

In its discussion of the issue in Xerox, the Court of Appeals stated that:

"Opinions and recommendations prepared by agency personnel may
be exempt from disclosure under FOIL as 'predecisional materials,
prepared to assist an agency decision maker***in arriving at his
decision' (McAulay v. Board of Educ., 61 AD 2d 1048, aff'd 48 NY
2d 659). Such material is exempt 'to protect the deliberative process
of government by ensuring that persons in an advisory role would be
able to express their opinions freely to agency decision makers
(Matter of Sea Crest Const. Corp. v. Stubing, 82 AD 2d 546, 549).

"In connection with their deliberative process, agencies may at times
require opinions and recommendations from outside consultants. It
would make little sense to protect the deliberative process when such
reports are prepared by agency employees yet deny this protection
when reports are prepared for the same purpose by outside
consultants retained by agencies. Accordingly, we hold that records
may be considered 'intra-agency material' even though prepared by
an outside consultant at the behest of an agency as part of the
agency's deliberative process (see, Matter of Sea Crest Constr. Corp.
v. Stubing, 82 AD 2d 546, 549, supra; Matter of 124 Ferry St.
Realty Corp. v. Hennessy, 82 AD 2d 981, 983)" [Xerox Corporation
v. Town of Webster, 65 NY 2d 131, 132-133 (1985)].

Based upon the foregoing, records prepared by a consultant for an agency may be withheld
or must be disclosed based upon the same standards as in cases in which records are prepared by
the staff of an agency. It is emphasized that the Court in Xerox specified that the contents of intra-
agency materials determine the extent to which they may be available or withheld, for it was held
that:

"While the reports in principle may be exempt from disclosure, on
this record - which contains only the barest description of them - we
cannot determine whether the documents in fact fall wholly within
the scope of FOIL's exemption for 'intra-agency materials,' as claimed
by respondents. To the extent the reports contain 'statistical or
factual tabulations or data' (Public Officers Law section 87[2][g][i],
or other material subject to production, they should be redacted and
made available to the appellant" (id. at 133).